Friday, January 31, 2014

Kentucky Gov. Steve Beshear's latest ObamaCare sign-up claims suggest there have been no policy cancellations at all in the first month of the federal healthcare takeover. Such a claim simply holds no water.

A CNN report Thursday suggested large chunks of ObamaCare pre-enrollments nationwide never paid their January premiums. Kentucky ObamaCare officials said any policies without a January premium payment would be canceled as of three weeks ago, but the Governor's press releases do not reflect any.

As of today, Beshear claims 44,160 Kentuckians are covered by ObamaCare insurance policies. Two weeks ago, that number was 39,771. On December 31, he said 31,672 were "enrolled." And these numbers ignore, of course, the 280,000 Kentuckians forced off their coverage in 2013 by ObamaCare.

The Governor's office has refused to answer multiple requests for information this month about policies canceled for non-payment.

Thanks to Kentucky state Rep. Tim Moore for filing a simple solution to the ObamaCare mess. Today he filed House Bill 306.

The bill adds the following language to Kentucky's Insurance Code:

Notwithstanding
any existing state-mandated health insurance benefit, any individual or group
in Kentucky may negotiate with any insurance provider in this state or another
state the terms of a health benefit plan that meets the individual's or group's
needs.

(2) Any individual or group may join together
with others to create a pool in order to pursue advantageous premium rates.

ObamaCare zealots in the House will throw a fit when they see this, but it is sorely needed. The worst part, from their perspective, is the "meets the individual's or group's needs." Please ask your state representative to co-sponsor this bill.

Thursday, January 30, 2014

The 2014 Kentucky General Assembly has only 21 more days to introduce House bills and still don't have one ratifying Gov. Beshear's illegal executive order creating and funding the state-run ObamaCare "exchange." There has been absolute silence in Frankfort about this, as the press corps has been too busy cheerleading Beshear's national ObamaCare tour.

There is no way to pull Beshear's fanny out of this fire. Reporters sitting around hoping for another sex scandal to materialize might as well start looking into Beshear's Waterloo.

Plaintiff moves the Court to reconsider its order filed in this case January 14, 2014 to correct multiple errors. The fundamental mistake from which others flow is found in the following sentence in the Court’s ruling: “Absent an allegation of a constitutional defect in the statute or the administrative regulation, this Court cannot adjudicate differences of opinion over educational policy.” The constitutional defect in question is in violation of Section 183 of the Kentucky Constitution. It is not found in Senate Bill 1 (2009). The Court charges that Plaintiff “also attacks the content of Senate Bill 1 (2009).” But the Complaint never even mentions Senate Bill 1, nor any of its provisions. The Court states “Common Core standards were subsequently adopted by 704 KAR 3:303,” and that “Defendants have followed the legislative directive by enacting a core curriculum.” While these statements are true, neither were mentioned in the Complaint because they are immaterial to the case. Defendant Beshear is bound by Section 81 of the Kentucky Constitution which states “He shall take care that the laws be faithfully executed.” This, of course, includes the constitutional directive found in Section 183 that the Commonwealth’s common schools be managed efficiently. Other Defendants operate as agents of the legislature, to whom Section 183’s mandate applies explicitly. To claim that Defendants can’t be sued for violating the Constitution because they followed legal procedure to violate it stands reason on its head. We can do better.

The Court states: “Plaintiff argues that because the core standards were not yet drafted at that time, their efficiency could not be assessed, and thus they violated the Constitution.” This is not accurate. Complaint reads: “Subsequent obligations of the Commonwealth related to Common Core could not be known then and still cannot in order to reasonably determine the efficacy for their implementation.” (emphasis added). Plaintiff did not say premature adoption of the Common Core Standards violated the Constitution, but that violating Section 183’s mandate for efficient schools violates the Constitution. This is clearly not simply a matter of educational philosophy as precedent dictates the issue of inefficient schools is always ripe for adjudication. Judicial responsibility for protecting the rights of the people of the Commonwealth forbids the Court from failing to determine if the loss of state sovereignty fundamental to adherence to Common Core, any public costs associated with it and any private losses incurred as a result of mismanagement of the common schools as a result meet the standard set out in Rose v. Council for Better Education, Inc., 790 S.W.2d 186. The issue clearly needs to be tested again.

This, of course, gets us to the question of standing. The Court writes: “As the Kentucky Supreme Court has explained, a party seeking declaratory relief “must show that an actual, justiciable controversy exists; proceedings for a declaratory judgment must not merely seek advisory opinions to abstract questions.” Defendants claim they followed proper procedure to implement a core curriculum and the Court writes: “Defendants have followed the legislative directive by enacting a core curriculum, even though Plaintiff is in strong disagreement over the content of the core curriculum.” Again, the effort to adopt “a core curriculum” does not give license to violate Section 183 simply because an acceptable procedure was followed to adopt “a curriculum.” Taking an action that in and of itself violates the Constitution cannot be legitimized because it was done intentionally. The Court writes: “Plaintiff argues that the Common Core State Standards contained in Senate Bill 1 do not meet the definition of efficient, in violation of Section 183 of the Kentucky Constitution. However, the proper forum for him to air his grievances is through the legislative process or by addressing those concerns directly to the Department of Education, Council on Postsecondary Education, and the Education Professional Standards Board.” This passage makes two key errors. First, the Common Core State Standards are not “contained in Senate Bill 1.” This is vitally important to understand. The mandate, found in Senate Bill 1, to adopt a core curriculum is not the same as a mandate to adopt an unconstitutional one. Plaintiff, again, does not “attack” Senate Bill 1 or even reference it except tangentially. Conflating Senate Bill 1 and Common Core does not hold up under any scrutiny. The Commonwealth is surely capable of adopting a set of educational standards and a core curriculum without violating its Constitution. In this process, we simply haven’t gotten there yet. That is why Plaintiff in Complaint seeks as redress an order for the General Assembly to do so with “appropriate legislation.” Sending Plaintiff back to Defendants to “air his grievances” nullifies Plaintiff’s right to live in a free and fair Commonwealth in which the Constitution rules in conflicts and the judiciary steps in to clarify when government officials overstep their bounds as they have done in this instance.

This same line of reasoning continues with the Court writing: “The Courts of Kentucky have recognized since the adoption of Section 183 of the Kentucky Constitution, that the curriculum to be taught in the common schools must be “prescribed by the state board of education to be taught therein.” Major v. Cayce, 98 Ky. 357, 33 S.W. 93 (1895). It is up to the state Board of Education, not the courts, to decide such issues of educational policy.” Again, they can set policy but they cannot violate the Constitution.

And finally, the Court quotes Second Street Properties v. Fiscal Court of Jefferson County, 445 S.W.2d 716, (Ky. App. 1969) which states contesting the validity of a statute requires that a plaintiff must show individual harm. The Court writes: “Plaintiff has failed to allege any particularized injury distinct from that of the general public that he, nor any other person, has suffered or will suffer as a result of such legislative actions.” First, Plaintiff clearly and repeatedly alleges in Complaint a violation of the Constitution of the Commonwealth of Kentucky Section 183, which harms Plaintiff specifically by promoting waste and mismanagement of public resources and particularly by putting at risk the quality of education available to his children. Further, Plaintiff explicitly articulates declaratory relief under KRS 418.040, which is his right and duty as a citizen and taxpayer. In the V. CLAIMS FOR RELIEF section of Complaint, Plaintiff complains against “Defendants’ acceptance of Common Core State Standards,” and seeks specific court action, “namely reversal of such acceptance and implementation until such time as the General Assembly grants approval of same by appropriate legislation.” Reason dictates that Plaintiff would have no justiciable claim if he were not either a citizen, taxpayer or parent of public school students in Kentucky. He is all of these. Plaintiff asserts his rights under KRS 418.040 with more than a reasonable expectation those rights will be observed. The Court, in citing Second Street Properties, errs in reference to what must be particularized to demonstrate standing. The American Jurisprudence passage quoted by the Court precludes only suits by those who “suffer in some indefinite way in common with people generally.” The lack of clarity of that statement literally screams for context unless one considers constitutional rights and a desire to limit waste of public resources as “indefinite.” And the context is very enlightening. In Second Street Properties, the plaintiff attempted to question a tax that literally did not apply to him as he did not live in Jefferson County. Given this fact, the issue of particularization must be viewed differently than is suggested by the Court in its Order. From Second Street: “Before one seeks to strike down a state statute he must show that the alleged unconstitutional feature injures him. Grise v. Combs, D.C., 183 F.Supp. 705 (1960). It has recently been held that before a taxpayer may maintain an action against the state or one of its agencies to test the constitutionality of a statute or an administrative policy, he must show he has a unique right or interest that is being violated in a manner special and different from the rights of other taxpayers. Calvary Bible Presbyterian Church v. Board of Regents, 72 Wash.2d 912, 436 P.2d 189 (1967). Note this does not say that he has been violated in a manner distinct from all taxpayers, but merely “taxpayers,” as in those not so violated. InGrise, the plaintiff alleged a hypothetical threat and not one that injured anyone. That plaintiff lacked particularized injury in that none yet existed in the case of a state law that supposedly may have led to a tax. In the present action, the threat of Common Core is real and present as a violation of Plaintiff’s rights to live in a state whose officials follow its constitution to protect against an impermissible abdication of state sovereignty and taxpayer dollars and in doing so without proper legislative approval. In Calvary Bible Presbyterian, the plaintiffs were non-taxpayers challenging the expenditure of taxpayer dollars. Those plaintiffs lacked particularized injury in that they could not be harmed by an expenditure they would play no role in making. In the current action, again, Plaintiff is a Kentucky taxpayer, a Kentucky citizen and a parent of Kentucky public school students claiming rights guaranteed by the Kentucky Constitution. From the context of Second Street, Grise and Calvary Bible Presbyterian, it is clear that particularization of harm is tool for determining the existence of a resolvable dispute between legitimately adversarial parties. The current action is resolvable by this Court by clarifying duties of state officials to ensure efficient common schools and the parties are clearly adversarial. Ruling as the Court has done on the issue of a “particularized injury” and “failure to state a claim” is to suggest that Plaintiff could only seek redress if the Commonwealth were to implement a “We won’t educate David Adams’ kids Act” which is clearly not and never has been the purpose of standing requirements. And requiring state officials to follow the Constitution they have sworn to uphold could not be a more appropriate request.

The Court ruled on July 1, 2013 in Civil Action No. 13-CI-605: “the doctrine of standing protects against collusive lawsuits in which the parties are truly in agreement but are seeking to obtain judicial ratification of a policy or issue without subjecting the claim to the scrutiny of a genuinely contested lawsuit. In order for a case to be justiciable, it must involve concrete rights of parties who have a real stake in the outcome. SeeFlast v. Cohen 392 U.S. 83 (1968). But the doctrines of standing and ripeness were not meant to be used as a subterfuge to allow the judicial branch to avoid controversial decisions in matters in which there is a genuine case or controversy between parties that are truly adversarial.

“Here there can be little doubt the parties are truly adversarial, and there is a genuine controversy over the legality of the challenged Executive action. It is fundamentally the duty of the Court system to decide disputes over whether government officials have exceeded their statutory and constitutional powers. SeeLegislative Research Commission v. Brown 664 S.W.2d 907 (1984).”

Plaintiff respectfully requests the Court to reconsider its Order in the present case and to rule that this present action may proceed to seek clarification of rights and responsibilities with regard to the issues brought forth in the Complaint.

Tuesday, January 28, 2014

The Kentucky House Democrat budget bill includes a $60 million dollar expenditure labeled "Health Benefit Exchange," but no legal authority or funding source for this ObamaCare spending exists.

Federal legal challenges against President Barack Obama's illegal health reform activities continue to move toward the United States Supreme Court, just as state suits against Beshear's actions progress in the direction of Kentucky's highest court.

Monday, January 27, 2014

Kentucky Constitution Section 230 states "no money shall be drawn from the State Treasury, except in pursuance of appropriations made by law." This presents a major problem for our biggest ObamaCare fan.

Despite false claims repeated unquestioningly by state media outlets, the Commonwealth is spending money right now out of the General Fund to pay administrative costs of ObamaCare. These expenditures were never approved by the legislature.

Beshear estimates he will spend $21.5 million on this mess by June 30. It's already too late to legitimize this spending and there is no chance the legislature would give it to him anyway to blow on ObamaCare.

Beshear will send his flunkies to a legislative hearing on February 10 to get approval for Medicaid Expansion in the next fiscal year. This is a great opportunity to draw attention to the illegal spending already underway.

Please make plans to come to room 149 in the Capitol Annex in Frankfort at 1:30 pm on Monday February 10. The Kentucky Supreme Court has been made aware of Beshear's lawbreaking and should officially stop it later this spring, but a strong showing at the Annex can help shift the momentum and change the conversation. Let's do this.

Tuesday, January 21, 2014

Governor Steve Beshear should give up his doomed state funding request for ObamaCare.

"Not even the two or three dumbest, weakest Republican legislators are dumb or weak enough to buy into ObamaCare and Beshear needs them all," said Tea Party activist David Adams. "Way too many at-risk Democrats hope he won't even ask them, but Beshear thinks he has to ask."

If the General Assembly does not fund the ObamaCare exchange in this year's budget bill, Kentucky's state-run exchange must fold and we will default to the federal exchange, in compliance with the Affordable Care Act. If the General Assembly does not fund the Medicaid expansion, Kentucky must reverse several clumsy steps taken to opt into that program, which was made optional by a 7-2 Supreme Court vote.

Hundreds of millions of dollars are at stake.

The Kentucky Supreme Court has been preparing since October to hear arguments over both ObamaCare actions. Without legislative approval, there is nothing in Kentucky law that saves Beshear's attempt to force Kentucky into ObamaCare.

"We still need the Court to clarify limits on the Executive Branch in Kentucky," Adams said. "Governor Beshear was so desperate for an accomplishment, he got a little crazy. Frankfort does that to people who hang around too long, I think."

Monday, January 20, 2014

On Tuesday January 21, Governor Steve Beshear will release his budget proposal for the next two years in Kentucky. It will include many millions of dollars for ObamaCare. There is ABSOLUTELY NO CHANCE the legislature will vote to approve that. This is why we are suing to get Kentucky out of ObamaCare and why, despite an overwhelming spin job by the Governor and all his people, we will win if we see this through.

Beshear has already violated his oath of office and Kentucky law to try to force ObamaCare on us and sneak it past the courts. The media will again be very slow to pick up the facts, but the "dead on arrival" status of his ObamaCare funding request Tuesday will open the door for us. For those who have fought this fight with me every step of the way, it has been brutal and often frustrating. But we are approaching the last hill. We must push on through.

Please share and forward this message so more of our fellow Kentuckians take courage and know our Constitution stands strong and so do we. Propaganda can not defeat us and craven politicians will not. Please contribute what you can to the legal battle so we can clarify again limits to executive branch power. The only language the political class understands is brute force and that takes money. Every dollar counts now in the home stretch. Please give what you can by clicking here.

Wednesday, January 15, 2014

A federal District Court ruling today ignored the plain language of ObamaCare and claimed people in states who opted out of setting up their own exchanges face tax penalties under the law, even though the "Affordable Care Act" statute specifically excludes them.

United States District Judge Paul L. Friedman ruled that the phrase "established by the State" means "established by the federal government, too" in this case because construction of the statute is sloppy in other places. I'm not kidding:

"Looking only at the language of 26 U.S.C. § 36B(b)-(c), isolated from the cross-referenced text of 42 U.S.C. § 18031, 42 U.S.C. § 18041, and 42 U.S.C. § 300gg-91(d)(21), the plaintiffs’ argument may seem the more intuitive one. Why would Congress have inserted the phrase “established bythe State under [42 U.S.C. § 18031]” if itintended to refer to Exchanges created by a state

or by HHS? But defendants provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)-(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state."

So this judge wants to appoint the Secretary of HHS as Governor and legislature of each of the states? That's interesting.

But the best part came later:

"If construed literally, these provisions would be nullified when applied to states without state-run Exchanges, leading to strange or absurd results."

Exactly.

I remain perplexed by those nominal Republicans who seem so eager to give up this fight. When the other side is melting down, continue to apply heat.

Monday, January 06, 2014

Obama and Beshear need you to believe the fight is over. The fight is not over.

In fact, right now we are much closer to winning the ObamaCare battle and turning back the tide of big government than ever before. Beshear needs to slip legislative approval and funding for his grand schemes past us in the weeks ahead and he knows it. Not even House Democrats appear willing to bail him out now.

So they are stuck trying to shout us down. Our fellow Kentuckians see the all-out assault on conservatives and they wonder if we will stand strong.

We will.

Please join a rally in support of conservative values in state government in opposition to ObamaCare, Common Core, reckless spending, higher taxes, immoral and unaccountable government officials and their disregard for human life and liberties at the State Capitol Rotunda in Frankfort on Thursday January 9 at 11 am ET. (Click here for a Facebook event page.) While opponents of freedom hope to keep us divided and demoralized, let's take the fight to them as only we can. Let's show them trying to defeat us is a pointless exercise on the wrong side of history.

Friday, January 03, 2014

Since Kentucky started taking applications for ObamaCare and forcing most applicants into Medicaid, the Kentucky Health Benefit Exchange has been excluding disability payments from income used to determine Medicaid eligibility. That changed yesterday and that's a big problem.

Under the Affordable Care Act, Medicaid eligibility is determined by a formula based on taxable income. The formula counts disability income as income, but excludes SSI payments. Until Thursday, applications for Kentucky ObamaCare excluded all disability income. That means potentially thousands of applicants to Kentucky ObamaCare who were placed into Medicaid were put there erroneously.

The correct thing to do here is to come clean immediately and bring all Beshearocrats in to fix all the applications they messed up prior to yesterday. Any further delay in doing so only compounds the existing mess. The Kentucky Supreme Court could and should make this whole thing go away by clarifying Beshear's illegal actions creating the mess. Before that happens, we really need to hear from Beshear on this right away.

Wednesday, January 01, 2014

Please ask any candidate for the Kentucky House of Representatives in 2014 if he or she will vote to impeach any Supreme Court justice who demonstrates support for Gov. Steve Beshear's illegal and unconstitutional ObamaCare actions without legislative approval.

Looking for a simple "yes" or "no."

Any candidates wishing to answer this simple question here can save us all some time.